1

6 Everett St., Suite 3103

Cambridge, MA 02138

hirc@law.harvard.edu

(617) 384-8165

July 15, 2020

Via Federal e-Rulemaking Portal

RE: Notice of Proposed Rulemaking, “Procedures for Asylum and Withholding of

Removal; Credible Fear and Reasonable Fear Review,” 85 Fed. Reg. 36264 (June

15, 2020)

To Whom It May Concern:

I. Statement of Interest

The Harvard Immigration & Refugee Clinical Program (“HIRC”) and the HLS

Immigration Project (“HIP”) submit this comment on the proposed rules issued by the U.S.

Department of Homeland Security (“DHS”) and the U.S. Department of Justice (“DOJ”)

(collectively, the “Agencies”), entitled Procedures for Asylum and Withholding of Removal;

Credible Fear and Reasonable Fear Review (the “Proposed Rules”).

HIRC is one of the oldest clinical programs in the country that focuses on the advancement

of immigrants’ rights while teaching students critical lawyering skills. HIRC includes two distinct

clinics: (1) the Immigration & Refugee Advocacy Clinic, which represents clients seeking

humanitarian protections in a range of different fora, including administrative tribunals and federal

appellate courts and (2) the Crimmigration Clinic, which focuses on the growing intersection of

criminal law and immigration law. HIRC faculty and staff also teach a range of courses concerning

immigration policy, refugees and trauma, the intersection of immigration law and labor law, and

the intersection of criminal law and immigration law. HIRC faculty and staff regularly publish

scholarship concerning asylum adjudication, due process protections in removal proceedings,

working with traumatized refugees, crimmigration, and immigration detention.

HIRC has worked with thousands of immigrants and refugees since its founding in 1984.

Its advocacy includes representation of individual applicants for asylum and related relief and the

development of theories and policy relating to asylum law, crimmigration, and immigrants’ rights.

HIRC has an interest in the proper application and development of U.S. asylum law to ensure that

the claims of individuals seeking asylum and related relief receive fair and proper consideration

under standards consisted with U.S. law and treaty obligations.

HIP is a student-practice organization under the supervision of HIRC, which provides law

students with the opportunity to gain practical, hands-on legal experience. HIP represents clients

seeking release from detention in Massachusetts, promotes policy reform, and provides

representation to refugees and asylees who are seeking family reunification and legal residency.

HIRC and HIP regard the Proposed Rules as arbitrary and capricious and contrary to law.

If implemented, the Proposed Rules would contravene the protections the United States is required

to provide under domestic and international law to individuals who fear return to persecution or

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torture. Stated plainly, the Proposed Rules would jeopardize the lives and safety of countless

refugees and asylum seekers eligible for protection. We urge DHS and DOJ to withdraw their

current proposal immediately.

In addition to our concerns about the substance of the Proposed Rules, HIRC and HIP also

object to the 30-day timeframe for commenting on them. Thirty days is an insufficient period of

time for the public to have a meaningful opportunity to comment on the Proposed Rules,

particularly in light of their scope and complexity. With more time, HIRC and HIP would have

been able to collect data about the likely effect of the Proposed Rules on our clients and/or

similarly-situated refugees and asylum seekers. The Agencies have not identified any reason for

departing from the more typical comment period of 60 days. If the Agencies do not withdraw the

Proposed Rules in their entirety, HIRC and HIP would request that the Agencies extend the

comment period or establish a second comment period. Additionally, in light of the thirty-day

comment window as regards the substance of the Proposed Rules, HIRC and HIP reserve the right

and intend to comment separately within the 60-day period regarding the “information collection”

provisions of the proposed rulemaking.

II. The Proposed Modifications to the Expedited Removal Process Are Arbitrary and

Capricious and Contrary to Law.

The credible fear interview (“CFI”) is an “initial screening” designed to protect individuals

against return to persecution or torture in the expedited removal process in accordance with U.S.

obligations under domestic and international law.1 Congress intended the credible fear interview

to involve “a low screening standard for admission into the usual full asylum process,”2 in order

to prevent the return to persecution of individuals with “genuine asylum claim[s].”3 The Proposed

Rules would unlawfully impose additional requirements on asylum seekers to prove their fears of

return and eviscerate the safeguards Congress intended the credible fear process to provide. In so

doing, the Proposed Rules all but guarantee that bona fide refugees will fail their CFIs and be

summarily returned to their home countries without ever having an opportunity to fully present

their claims.

When CFIs are conducted, many asylum seekers are detained, have no access to counsel,

and are still suffering from significant trauma due to the harm they suffered in their home

countries.4 As a result, it is often very difficult for asylum seekers to recount their past experiences

1 H.R. REP. NO. 104-469, pt. 1, at 158 (1996). 2 See 142 CONG. REC. S11491-02 (“The credible fear standard . . . is intended to be a low screening standard for

admission into the usual full asylum process[.]”); see also Grace v. Whitaker, 344 F. Supp. 3d 96, 107 (D.D.C.

2018). 3 H.R. REP. NO. 104-469, pt. 1, at 158 (1996). 4 See id.; Giulia Turrini et al., Common mental disorders in asylum seekers and refugees: umbrella review of

prevalence and intervention studies, 11 INT’L J. OF MENTAL HEALTH SYSTEMS 51 (Aug. 25, 2017),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5571637/ (finding that at least one out of every three asylum

seekers struggles with post-traumatic stress disorder, depression, and/or anxiety); Megan Brooks, Refugees have

high burden of mental health problems, Psychiatry and Behavioral Health Learning Network, (June 19, 2019)

https://www.psychcongress.com/article/refugees-have-high-burden-mental-health-problems. See Ingrid V. Eagly &

Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PENN. L. REV. 1, 2 (2015)

(finding that only “only 37% of all immigrants, and a mere 14% of detained immigrants” were represented by

counsel in removal proceedings).

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and fears during the CFI process.5 Language barriers exacerbate these challenges.6 Qualified

interpreters in a particular language may not be available, and asylum seekers may be required to

proceed in a language they do not speak fluently. CFIs are frequently conducted telephonically,7

which may negatively affect the quality of communication. Moreover, not all interpreters are able

to correctly interpret idioms or account for cultural variances in languages, which may result in

erroneous negative credible fear determinations. Furthermore, DHS has reportedly engaged

Customs and Border Protection (“CBP”) officers, who unlike asylum officers do not receive

substantive legal training, to conduct CFIs—a task for which they are altogether unequipped.8

In line with the “initial screening” purpose and the above-described practical limitations,

under current regulation, asylum officers conducting CFIs do not analyze or reach determinations

relating to internal relocation or the statutory bars listed in 8 U.S.C. § 1158(b)(2).9 But the

Proposed Rules would require asylum officers to do just that. CFIs are, however, not the proper

forum for these determinations, which involve detailed fact-finding and complex legal analysis

that can only be carried out in a full adjudication, not in a cursory screening.

For example, in compiling and reviewing the facts and applying the law to reach a

determination on a statutory bar, an adjudicator may need to evaluate the relationship between

state criminal codes and the INA, take evidence including written and oral testimony from multiple

witnesses, review human rights reporting, newspapers articles, and primary documents, and gain

a broader, evidence-based understanding of the individual’s circumstances. Importantly, under the

current regulations, the government must make a showing that internal relocation is both possible

and reasonable to rebut a finding of past persecution.10 And with respect to statutory bars, it is the

government that has the initial burden of showing that the asylum seeker is subject to a bar.11

The Proposed Rules, in contrast, would improperly place the burden of proof on asylum

seekers (even those who have experienced past persecution) to demonstrate that internal relocation

is not reasonable and that they are not subject to a statutory bar—without any showing by the

government at all. And all of this would be determined while detained, without a hearing, without

counsel, and without a reasonable opportunity to present evidence. Such a process would patently

contravene Congress’s intent because it would be impossible to ensure under those circumstances,

5 See generally Dep’t of Homeland Security, et al. v. Thuraissigiam, Brief of Asylum Law Professors Amici Curiae,

Jan. 2020, https://www.supremecourt.gov/DocketPDF/19/19-

161/129571/20200122164055218_Refugee%20Scholars%20Amicus%20Brief_FINAL%20TO%20BE%20FILED.p

df. 6 Id. 7 See U.S. Commission on International Religious Freedom, Barriers to Protection: The Treatment of Asylum

Seekers in Expedited Removal 36 (2014) (“59 percent of [credible fear] interviews were conducted” telephonically

in FY2014, with “[t]he greatest use of telephonic interviews . . . for asylum seekers in Expedited Removal who

crossed the southern border.”). 8 See Memorandum of Agreement Between U.S. Customs and Border Protection (CBP) and U.S. Citizenship &

Immigration Services (USCIS) (July 10, 2019), available at https://www.documentcloud.org/documents/6798341-

Signed-MOA-by-Morgan-INTC-1647-Redactions-Applied.html (providing for CBP officers to begin conducting

CFIs). 9 USCIS-RAIO Asylum Division Officer Training Course Lesson Plan Overview, Credible Fear of Persecution and

Torture Determinations 17 (Feb. 13, 2017), available at https://www.aila.org/infonet/raio-and-asylum-division-

officer-training-course. 10 See 8 C.F.R. §§ 208.13(b)(1)(ii) (establishing regulatory burden-shifting scheme); 1208.13(b)(1)(ii) (same). 11 Maharaj v. Gonzales, 450 F.3d 961, 972 (9th Cir. 2006) (en banc) (explaining that the government bears the

initial burden of proof that the firm resettlement bar applies).

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that there is “no danger that an [individual] with a genuine asylum claim will be returned to

persecution.”12

Additionally, the “significant possibility” standard ought to remain the only statutory

standard applicable to the CFI; any other standard would be arbitrary and capricious, and contrary

to law. The Proposed Rules would unlawfully ratchet up this threshold screening standard,

requiring that individuals under consideration for statutory withholding of removal or relief under

the Convention Against Torture (“CAT”) demonstrate that they face a “reasonable possibility of

persecution” or a “reasonable possibility of torture,” respectively. Yet, in our clinic’s experience,

establishing a “reasonable possibility” of persecution often requires assistance of counsel and

detailed evidentiary submissions, including multiple declarations, evidence from the home

country, and country conditions research—all of which is typically unavailable to asylum seekers

in expedited removal at the border.

The Proposed Rules acknowledge that “[i]n some cases, asylum officers would need to

spend additional time eliciting more detailed testimony from aliens to account for the higher

standard of proof.” Nevertheless, the Proposed Rules assert that “the overall impact on the time

asylum officers spend making determinations would be minimal” because “the procedural aspects

of making screening determinations regarding fear of persecution and of torture would remain

largely the same.” However, the Agencies provide no data or evidence to support the assertion that

the overall impact on time will be minimal. We therefore request that the Agencies provide any

empirical evidence that underlies this claim. When taken together with the other changes proposed

in the Rules, substantial delays in the expedited removal process are inevitable.

III. The Proposed Rules’ Misguided Attempt to Re-Write the Definition of Refugee is

Unlawful.

A. The Proposed Rules’ Definition of “Persecution” Flies in the Fact of Decades

of Precedent, Discounts the Severity of Cumulative Harms and Nonphysical

Harms, and Ignores that Child Refugees Require a Differentiated Analysis

When Considering the Seriousness of Harm.

The Proposed Rules would unlawfully impose a rigid and narrow definition on

persecution—a term intentionally left undefined in both the Refugee Convention and U.S.

statute.13 In doing so, the Proposed Rules would deviate from the well-settled understanding that

persecution is a flexible concept that encompass evolving types of harm.14 More specifically, the

Proposed Rules would unlawfully limit the type of harm that constitutes persecution, restricting it

to “actions so severe that they constitute an exigent threat.” As such, the Proposed Rules would

fail to account for the cumulative effect of harm and the psychological harm that can be caused by

repeated threats, even when “there is no actual effort to carry out the threats.”

Indeed, courts have repeatedly recognized that “[c]redible, specific threats can amount to

persecution if they are severe enough,” and “[t]hreats of murder[] fit squarely within this rubric.”15

12 H.R. REP. NO. 104-469, pt. 1, at 158 (1996). 13 See Sabrineh Ardalan & Palmer Lawrence, The Importance of Nonphysical Harm: Psychological Harm and

Violations of Economic, Social, and Cultural Rights in U.S. Asylum Law, 14-09 IMMIGRATION BRIEFINGS 1, 3 (Sept.

2014). 14 See Deborah Anker, LAW OF ASYLUM § 4:4 (2020). 15 See, e.g., Javed v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013) (internal citations omitted).

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In a recent case, for example, HIRC represented a Central American asylum seeker who

experienced increasingly violent, credible, and graphic threats, which an immigration judge

recognized as persecution. Another example is N.L.A. v. Holder, where the Revolutionary Armed

Forces of Colombia killed the asylum seeker’s uncle, kidnapped her father, and delivered a threat

to the asylum seeker through her father.16 The immigration judge and Board concluded the asylum

seeker had not been persecuted because she was never directly harmed or threatened, and the

unfulfilled threat was insufficient to constitute persecution.17 The Seventh Circuit reversed,

describing the harm to the asylum seeker’s uncle and father as part of the threat to the applicant

and noting that “[i]n many instances, watching a loved one suffer is more harmful than suffering

oneself.”18 The Proposed Rules conflict with this well-settled statutory interpretation.

HIRC has also represented many LGBTQI refugees in asylum applications, and the

Proposed Rules could lead to significant adverse results for members of the LGBTQI community

who also frequently experience severe nonphysical harm.19 For example, HIRC recently

successfully represented a gay couple from the Middle East in affirmative asylum proceedings.

Their claims for protection were granted based, inter alia, on the cumulative psychological harm

suffered, including severe mental distress and even suicide attempts. Yet, under the Proposed

Rules, such severe harm would no longer rise to the level of persecution in direct contravention of

long-standing precedent.

Additionally, the Proposed Rules fail to provide any guidance whatsoever on adjudicating

claims by children who may experience harm differently from adults. Federal courts have

consistently recognized that “age can be a critical factor” in determining past persecution or a well-

founded fear of persecution and “the harm a child fears or has suffered . . . may be relatively less

than that of an adult and still qualify as persecution.”20 The rigid and narrow definition of

persecution under the Proposed Rules, however, fails to incorporate the child-sensitive approach

to assessing whether harm rises to the level of persecution required under U.S. law.

B. The Proposed Rules Regarding Nexus Impermissibly Establish Categorical

Barriers to Asylum Claims Based on Gender and/or Domestic Violence, and

Violate the REAL ID Act’s “At Least One Central Reason” Standard for

Nexus in Asylum Claims.

Under the REAL ID Act of 2005, Congress specified that for asylum claims persecution is

“on account of” a protected ground whenever a protected ground “was or will be at least one central

reason” for the persecution.21 The plain, unambiguous language of the statute recognizes that

16 744 F.3d 425, 429-30 (7th Cir. 2014). 17 Id. at 431-32. 18 Id. at 432. 19 See USCIS-RAIO Guidance for adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee

and Asylum Claims, § 4.1 (Mar. 2012), available at

https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum%20

Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf. (“Being compelled to abandon

or conceal one’s sexual orientation or gender identity, where this is instigated or condoned by the state, may amount

to persecution. LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in

order to avoid the severe consequences of such exposure”). 20 Ordonez-Quino v. Holder, 760 F.3d 80, 84 (1st Cir. 2014); Kholyavskiy v. Mukasey, 540 F.3d 555, 569 (7th Cir.

2008) (“In assessing whether incidents cross the line from harassment to persecution, we look not only at the nature

of the abuse that the individual endured, but also the age of the petitioner at the time the events took place.”). 21 8 U.S.C. § 1158(b)(1)(B)(i).

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persecutors may have multiple reasons for inflicting harm and that merely identifying some other,

non-protected reason cannot foreclose relief.22 Consistent with this unambiguous statutory

language, the Board and courts have explicitly held that persecutors may have mixed motives and

that a protected characteristic need not be the only reason for persecution.23 Courts have thus held

that if a nexus exists between the persecution and a protected ground, “the simultaneous existence

of a personal dispute doesn’t eliminate that nexus.”24 Yet, the Proposed Rules contravene this

Congressionally-mandated mixed-motives approach, and instead declare by unexplained fiat that

nexus to a protected ground will not exist in a variety of factual circumstances.25

Most notably, the Proposed Rules state that, in general, asylum claims will not be

successful where the persecution is based on: (1) personal animus or retribution; (2) interpersonal

animus where the persecutor has not targeted or manifested an animus against other members of

the particular social group; or (3) gender. If published in their current form, these Proposed Rules

would encourage adjudicators to improperly deny bona fide asylum claims as facially invalid

without substantively assessing whether at least one protected ground constitutes a central reason

for the persecution suffered or feared.

This is especially true in the case of survivors of domestic violence or other forms of

gendered violence, because the regulations encourage adjudicators to dismiss their persecution as

based on “interpersonal animus,” rather than on account of a protected ground. But this notion flies

in the face of social science research,26 which demonstrates that gender is at least one central reason

for so-called “interpersonal violence.”27 Moreover, nexus is a factual question and categorically

denying all cases where gender is part of the nexus is antithetical to the case-by-case analysis

required by asylum law.28 The Proposed Rules undermine protection whenever gender is at least

one central reason for persecution, and in so doing improperly conflate the particular social group

and nexus elements of the refugee definition. Specifically, the Proposed Rules nonsensically

identify “gender” as a “situation” in which the Agencies will not favorably adjudicate asylum or

withholding claims.

22 See, e.g., Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (characterizing the nexus

inquiry as a question of fact); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017) (same); Shaikh v. Holder, 702

F.3d 897, 902 (7th Cir. 2012) (same); Pulisir v. Mukasey, 524 F.3d 302, 309 (1st Cir. 2008) (same). 23 See, e.g., Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009); Ndayshimiye v. Att’y Gen., 557 F.3d 124,

129 (3d Cir. 2009); Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012); Acharya v. Holder, 761 F.3d 289, 297-98

(2d Cir. 2014); Matter of S-P-, 21 I. & N. Dec. 486, 492-95 (B.I.A. 1996). 24 See Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010) (“[I]f there is a nexus between the persecution and the

membership in a particular social group, the simultaneous existence of a personal dispute does not eliminate that

nexus.”); see also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[T]he mixed-motives

analysis should not depend on a hierarchy of motivations in which one is dominant and the rest are subordinate.”);

Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) (rejecting as unreasoned the BIA’s distinction between an

applicant’s “status as a former gang member” and the gang’s “personal” desire to punish him for leaving the gang). 25 Cf. De Pena-Paniagua v. Barr, 957 F.3d 88, 91-94 (1st Cir. 2020) (analyzing Attorney General’s decision in

Matter of A-B- and finding lack of “any basis other than arbitrary and unexamined fiat for categorically decreeing

without examination that there are no women in Guatemala who reasonably feel unable to leave domestic

relationships as a result of forces other than physical abuse”). 26 See, e.g., American Psychological Association, Violence and the Family: Report of the APA Presidential Task

Force on Violence and the Family—Executive Summary (2005), available at

http://www.nnflp.org/apa/APA_task_force.htm. 27 Kamar v. Sessions, 875 F.3d 811, 818 (6th Cir. 2017). 28 Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285 (3d Cir. 2007).

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The Proposed Rule erroneously asserts that this exclusion of gender-based claims is

“rooted in case law.” Yet the very case the Proposed Rules cite, Niang v. Gonzales,29 stands for

the exact opposite legal proposition. In Niang, the Tenth Circuit explained “that the focus [of

analysis] with respect to [gender-based asylum] claims should not be on whether either gender

constitutes a social group (which both certainly do) but on whether the members of that group are

sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of’ their

membership.”30 The Proposed Rules seem to suggest that gender cannot form a basis for asylum

because it would permit too many people to claim protection. But this unsupported assertion,

which itself appears to conflate the nexus and protected ground analyses, is contradicted by well-

reasoned court decisions.31 As the en banc Seventh Circuit explained in Cece v. Holder, “[i]t would

be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid

claims merely because too many have valid claims.”32

Additionally, the Proposed Rules’ unsupported assertion fails to acknowledge that denying

asylum based on gender is a dramatic departure from well-established law that will have profound

effects on some of the most vulnerable people. For example, female genital mutilation or cutting

(“FGM/C”) is a well-established basis for asylum and various apparatuses of the U.S. government

have recognized the gendered character of the severe harm caused by FGM/C. Indeed, USCIS has

identified FGM/C as both a “serious human rights abuse” and “gender-based violence.”33 The U.S.

Department of Health & Human Services lists “severe pain,” “serious bleeding,” “infection,”

“trauma,” and “death” as among the immediate medical problems that can accompany FGM/C.34

The long-term effects can include higher risk of HIV and other STI/STD transmissions, vaginal

scarring and pain during sex, depression and anxiety, painful and prolonged menstrual periods,

urinary problems, and more.35 Further, the World Health Organization describes the practice as

29 Niang, 422 F.3d 1187, 1199-200 (10th Cir. 2005). 30 Id. at 1199-200 (emphasis added). 31 See, e.g., Perdomo v. Holder, 611 F.3d 662, 667 (9th Cir. 2010) (“Thus, we clearly acknowledged that women in

a particular country, regardless of ethnicity or clan membership, could form a particular social group”); Hassan v.

Gonzales, 484 F.3d 513, 518 (8th Cir. 2007) (“Somali females” constitute a particular social group); Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993) (Iranian women meet the social group definition). See also Matter of A-T-, 24 I. &

N. Dec. 296, 304 (B.I.A. 2007) (“gender is an immutable trait that is generally recognizable”), vacated and

remanded, 24 I. & N. Dec. 617 (A.G. 2008).

Recently, in De Pena-Paniagua v. Barr, the First Circuit considered whether gender alone might constitute

a PSG in the context of a domestic violence case. See 957 F.3d 88, 95 (1st Cir. 2020) The First Circuit noted that the

Board applied the doctrine of ejusdem generis to the statute to develop its test in Matter of Acosta, which concluded

that the shared characteristic of gender is comparable to the other protected grounds in the INA. See id. at 94. Noting

that some case law gave rise to a fear that “women” or “women in country X” might be too large or too indistinct to

serve as a PSG, the First Circuit concluded that “it is not clear why a larger group defined as ‘women’, or ‘women in

country X’—without reference to additional limited terms—fails either the ‘particularity’ or ‘social distinction’

requirement. See id. at 96. The First Circuit explained that “gender serves as a principal, basic differentiation for

assigning social and political status” in some countries. See id. The First Circuit further found it would be

“unsurprising [] that if race, religion, and nationality typically refer to large classes of persons, particular social

groups—which are equally based on innate characteristics—may sometimes do so as well.” See id. 32 See 733 F.3d 662, 675 (7th Cir. 2013) (en banc). 33 Female Genital Mutilation or Cutting (FGM/C), USCIS, available at https://www.uscis.gov/fgmc (last modified

June 15, 2018). 34 Female genital mutilation or cutting, U.S. Dep’t of Human Serv., available at https://www.womenshealth.gov/a-

z-topics/female-genital-cutting (last updated Apr. 1, 2019). 35 Id.

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having “[n]o health benefits, only harm.”36 Yet, under the Proposed Rules, a girl could be denied

safety in the United States and subjected to this practice against her will.

Finally, the Proposed Rules seek to exclude evidence that can be critical to demonstrating

gender is “at least one central reason,” by prohibiting “consideration of evidence promoting

cultural stereotypes of countries or individuals, including stereotypes related to race, religion,

nationality, and gender.”37 For example, the Proposed Rules characterize evidence of societal

machismo as resting on “pernicious cultural stereotypes” that “have no place in the adjudication

of applications for asylum.”38 This provision would severely limit submission of key evidence

needed to support gender-based claims, including documentation that violence against women in

a particular society is committed with impunity and that gender is “at least one central” reason for

their harm.

C. The Proposed Rules Misapprehend Fundamental Law Regarding “Particular

Social Group.”

As with nexus, the Proposed Rules would preclude, without explanation, entire categories

of “particular social groups” (“PSGs”),39 including those based on “past . . . criminal . . .

associations.”40 However, by categorically excluding certain classes of people from asylum

protection, the Agencies demonstrate a fundamental misunderstanding of their own doctrine.

The Board of Immigration Appeals (“BIA” or “Board”) explained in its 1987 decision in

Matter of Acosta that a “particular social group” is one united by a common immutable

characteristic or fundamental trait and that the cognizability of a PSG is determined over a series

of case-by-case adjudications.41 The Board reiterated the case-by-case analysis in Matter of M-E-

V-G-, wherein it further specified a valid particular social group exists when (1) group members

share an immutable characteristic, (2) the group is defined with particularity, and (3) the group is

socially distinct within the society in question.42 Yet the Proposed Rules never explain why the

listed groups do not satisfy these requirements, instead declaring conclusively that they would

“generally be insufficient.”43

Courts have, however, made clear that the government cannot simply declare that a social

group is not cognizable without analysis. For example, in a July 2020 published opinion, the

Second Circuit vacated a BIA decision, holding that an asylum seeker’s articulated social group,

which was based on former criminal membership, was as a categorical rule non-cognizable

because “the BIA’s own precedential decisions require the agency to determine on a case-by-case

basis whether a group is a particular social group for the purposes of an asylum claim.”44 Similarly,

the First Circuit recently “reject[ed] as arbitrary and unexamined the BIA holding . . . that

[petitioner’s] claim necessarily fails because the groups to which she claims to belong are

36 Female genital mutilation, World Health Organization (Feb. 3, 2020), available at https://www.who.int/news-

room/fact-sheets/detail/female-genital-mutilation. 37 85 Fed. Reg. at 36282. 38 Id. 39 85 Fed. Reg. at 36279. 40 Id. 41 19 I. & N. Dec. 211, 233 (B.I.A. 1987). 42 Id. 43 Id. at 53. 44 See Ordonez-Azmen v. Barr, __ F.3d__ (2d Cir. 2020) (Slip Op.) at 13.

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necessarily deficient.”45 The stated intent of the Proposed Rules––to “reduce the amount of time

the adjudicators must spend evaluating such claims”––defies the Board’s mandate for a careful,

case-by-case review.46

In addition to short-circuiting case-by-case PSG analysis, the Proposed Rules also state

that asylum seekers will “waive the ability to file any motion to reopen or reconsider an asylum

application related to the alien’s membership in a particular social group that could have been

brought at the prior hearing.” The effect of this change will be to unfairly force asylum seekers—

including those proceeding without counsel––to perfectly anticipate, and make strategic litigation

choices based upon, frequently morphing administrative and judicial standards for cognizable

PSGs.47 This is particularly unreasonable in light of the fact that “[d]efining a PSG is unspeakably

complex and the requirements ever-changing.”48 And, as adjudicators have emphasized, a refugee

is “no less deserving of asylum’s protections because of her inability to exactly delineate a

convoluted legal concept.”49

D. Political Opinion

The Proposed Rules similarly attempt to rewrite the definition of political opinion as a

protected ground in direct contravention of U.S. obligations under domestic and international law.

Under the Proposed Rules, the meaning of political opinion would be limited to “an ideal or

conviction in support of a discrete cause related to political control of a state or a unit thereof.”

This change would dramatically narrow the definition of political opinion to those related to a

formal political ideology or party. The Proposed Rules also appear to unlawfully narrow political

opinion claims to those involving formal state institutions. The proposal thus flies in the face of

decades of precedent establishing that political opinion should be interpreted much more broadly

and would eliminate the possibility of protection for many vulnerable refugees.50

45 De Pena-Paniagua, 957 F.3d at 94.

46 See, e.g., Ordonez-Azmen v. Barr, __ F.3d__ (2d Cir. 2020) (Slip Op.) at 13 (“[T]he BIA’s own precedential

decisions require the agency to determine on a case-by-case basis whether a group is a particular social group for the

purposes of an asylum claim.”); Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (“To be consistent with its

own precedent, the BIA may not reject a group solely because it had previously found a similar group in a different

society to lack social distinction or particularity.”); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014)

(“[S]ocial group determination[s] must be made on a case-by-case basis[.]”). 47 Compare Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (B.I.A. 2017) (recognizing an applicant’s nuclear family is a

cognizable PSG) with 27 I. & N. Dec. 581, 594–95 (A.G. 2019) (ruling on the same record the same applicant’s

family is not a cognizable PSG); also compare Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014) (recognizing

“married women in Guatemala who are unable to leave their relationship” as a cognizable PSG) with Matter of A-B-,

27 I. & N. Dec. 316, 333 (ruling “A-R-C-G- was wrongly decided”) and Juan Antonio v. Barr, 959 F.3d 778, 790-91

n. 3 (6th Cir. 2020) (holding Matter of A-B- has been abrogated and the Matter of A-R-C-G- formulation may be

cognizable). 48 Cantarero-Lagos v. Barr, 924 F.3d 145, 154 (5th Cir. 2019) (Dennis, J., concurring).

49 Id.; Cece, 733 F.3d at 670 (“Both the parties and the immigration courts were inconsistent [in articulating the

contours of the relevant social group], and the description of her social group varied from one iteration to the next.

The inconsistencies, however, do not upset the claim.”).

50 See, e.g., Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017 (9th Cir. 2011) (“[A] political opinion encompasses more

than just participation in electoral politics or holding a formal political ideology.” (citation omitted)); Hasan v.

Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004) (overruled on other grounds by, Maldonado v. Lynch, 786 F.3d 1155

(9th Cir. 2015)) (holding that the reporter's “article was a political statement despite the fact that she did not espouse

a political theory”). See also United Nations High Commissioner for Refugees, UNHCR Guidelines on International

Protection No. 10, ¶ 51, HCR/GIP/13/10 (Nov. 12, 2014), available at

10

Adjudicators have long agreed that political opinion claims are not limited to those related

to formal state institutions.51 For example, in one HIRC case, a children’s rights activist was found

to have a well-founded fear of future persecution based on her political opinion because of her

work to prevent local children from being recruited by gangs.52 The court rightfully concluded that

her anti-gang and pro-community welfare activism qualified as a political opinion.53 Yet under the

Proposed Rules, opposition to gangs would not qualify as a political opinion because gangs are

not formal state actors—even though, in some countries, violent gangs overpower state actors and

assume control over certain territories.54 Although these gangs may not legally have “control of a

state or unit thereof,”55 they are nonetheless powerful political entities, and in many areas, usurp

the power of the state. The Proposed Rules thus ignore the reality that many asylum seekers are

forced to flee because the gangs are more powerful than the state itself.

Moreover, courts have long understood that feminist opinions and opinions related to basic

human rights constitute political opinions for asylum purposes, even though they are not directly

related to party politics.56 In addition, the Department of Justice itself has recognized that

violations of gender-discriminatory norms can be been considered expressions of feminist political

opinions.57 The Proposed Rules would, however, defy this precedent by excluding belief in

http://www.refworld.org/docid/529ee33b4.html [perma.cc/F588-MNZH] (“The political opinion ground is broader

than affiliation with a particular political movement or ideology[.]”).

51 See, e.g., Matter of —, Hartford Immigration Court (Jan. 14, 2015), available at perma.cc/U4JP-LE3Y (granting

asylum on the basis of anti-gang political opinion claim “[i]n light of the gangs’ political agendas and effective

control over large areas of Guatemalan territory”).

52—, Boston Immigration Court, at 9 (Sept. 18, 2019) (unpublished) (on file with author).

53 Id.

54 See Alexandra Grayner, Escaping Forced Gang Recruitment: Establishing Eligibility for Asylum After Matter of

S-E-G-, 63 HASTINGS L.J. 1417, 1425 (2012) (explaining that gangs are so powerful in certain areas that police

officers must ask permission before entering). 55 85 Fed. Reg. at 36280. 56 See, e.g., Fatin v. INS, 12 F.3d 1233, 1241 (3d. Cir. 1993); Zavala Meza v. Barr, 773 Fed. Appx. 977, 977 (9th

Cir. 2019) (holding that “rejecting a job offer from a police commander” constituted “an anti-corruption political

opinion”) (citing Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)); Osorio v. I.N.S., 18 F.3d 1017,

1029-30 (2d Cir. 1994) (criticizing the Board for “ignor[ing] the political context” of a union dispute in Guatemala

and stating that, “in a country where the government suppresses civil liberties and commits widespread human rights

violations, unions (and student organizations) are often the only vehicles for political expression”). See also

Hernandez-Chacon v. Barr, 948 F.3d 94, 102-05 (2d Cir. 2020) (finding that the BIA failed to adequately consider

whether petitioner’s “opposition to the male-dominated social norms in El Salvador and taking a stance against a

culture that perpetuates female subordination and the brutal treatment of women” constituted an expression of

political opinion); Fatin, 12 F.3d at 1241-42; Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir. 1994); Lazo-Majano v.

I.N.S., 813 F.2d 1432, 1435-36 (9th Cir. 1987) overruled in part on other grounds by Fisher v. I.N.S., 79 F.3d 955,

963 (9th Cir. 1996) (en banc) (finding that resistance to rape and beating constituted political opinion opposing male

domination); –– (B.I.A., July 3, 2019) (unpublished) (remanding because immigration judge “does not adequately

explain why the respondent’s belief in women’s equality, as expressed to her former partner, does not constitute a

political opinion”), available at https://perma.cc/3L3R-NTXR; –– (Arlington Immigration Court, July 29, 2019)

(unpublished) (finding respondent’s “belief in women’s rights and equality constitutes a political opinion”) (on file

with author); see also USCIS, RAIO Combined Training Course: Female Asylum Applicants 36 (Oct. 16, 2012),

available at perma.cc/D3YU-RHCP (“[E]xpressions of independence from male social and cultural dominance in

society, and refusal to comply with traditional expectations of behavior . . . may all be expressions of political

opinion.”).

57 See INS, Considerations for Asylum officers Adjudicating Asylum Claims from Women 8 (May 26, 1995),

available at https://www.state.gov/s/l/65633.htm (emphasizing that an applicant can assert fear of persecution “on

account of a political or religious belief concerning gender” and that adjudicators should give such claims “proper

consideration”); see also UNHCR, Guidelines on International Protection: Gender-Related Persecution ¶ 26 (2002),

11

women’s rights as a political opinion. The Proposed Rules would thus likely have particularly

harmful effects on women and girls fleeing persecution based on their beliefs in gender equality.58

IV. The Proposed Rules Place Additional Unreasonable and Unlawful Burdens upon

Asylum Seekers.

A. Firm Resettlement

The Proposed Rules would change the definition of firm resettlement due to “increased

availability of resettlement opportunities,” because forty-three countries have signed the Refugee

Convention since 1990. But ratification of the Refugee Convention or Protocol in no way

guarantees an effective asylum or resettlement process.59 Many countries that are party to the

Refugee Convention and Protocol do not have fair or accessible asylum processes, and asylum

seekers who travel through transit countries often face persecution similar to what they

experienced in their home country.60 Indeed, the Agencies provide no evidence that would reflect

the increased availability of adequate resettlement opportunities in those countries. We therefore

request that the Agencies provide empirical evidence for the time period of fiscal years 2010 to

2020 that reflects (1) the number of refugees who were given permanent resident status,

citizenship, or some other type of permanent resettlement in each country that is party to the

Refugee Convention and Protocol, (2) the laws and procedures adopted by each country to

incorporate the Convention and Protocol into its domestic legal system, as well as actual practice

of implementation, and (3) the number of U.S. asylum seekers who were denied protection based

on the firm resettlement bar.

The legislative history of the Refugee Act makes clear that statutory bars included in the

legislation were based on, and intended to be interpreted consistently with, the Refugee

Convention and Protocol’s exclusion from refugee status of “a person who is recognized by the

competent authorities of the country in which he has taken residence as having the rights and

obligations which are attached to the possession of the nationality of that country.”61 Thus,

Congress, when including a “firm resettlement” bar in U.S. law, understood it to be equivalent to

https://www.unhcr.org/3d58ddef4.pdf (“[C]ontrary behavior . . . or failure to conform could be interpreted as

holding an unacceptable political opinion that threatens the basic structure from which certain political power

flows.”).

58 See Nancy Kelly, Gender-Related Persecution: Assessing Asylum Claims of Women, 26 CORNELL INT’L L.J. 625,

642 (1993) (“The existing refugee definition contained in the Convention and the Immigration and Nationality Act

can accommodate the majority of gender-related cases of women, formulated as persecution based on membership

in a particular social group, political opinion or imputed political opinion.”) (emphasis added). 59 The fact that a third country has ratified the Refugee Convention or Refugee Protocol is not sufficient to validate a

transfer of an applicant’s asylum claim to that country. UN High Commissioner for Refugees (UNHCR), Legal

considerations regarding access to protection and a connection between the refugee and the third country in the

context of return or transfer to safe third countries, 4 ¶ 10 (Apr. 2018), available at

https://www.refworld.org/docid/5acb33ad4.html. 60 See East Bay Sanctuary Covenant, No. 19-16487, 2020 WL 3637585, at *11 (9th Cir. July 6, 2020) (describing

that signatories to the Convention and Protocol merely submit an instrument to the U.N. Secretary General and need

not submit to any meaningful procedure to ensure that its obligations are actually discharged, and that many asylum

seekers flee Guatemala, Hondurans, and El Salvador, which are all signatories). 61See Refugee Convention, Art. 1(E); Matter of A-G-G-, 25 I. & N. Dec. 486, 489-94 (B.I.A. 2011) (discussing the

history of the firm resettlement bar); see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 450 (1987) (Blackmun, J.,

concurring) (“[I]n the 1980 Act, Congress was attempting to bring this country’s refugee laws into conformity with

the United Nations Protocol”).

12

Article I.E of the Refugee Convention, which requires both that the individual has actually “taken

residence” in the country in question and has been accorded “rights and obligations” comparable

to “national[s] of that country.”62

Current implementing regulations require that a person have, or have been offered,

“permanent resident status, citizenship, or some other type of permanent resettlement.”63 An

asylum seeker can rebut the contention that she was firmly resettled when entry was a necessary

consequence of flight from persecution and she established no significant ties in the country and

when the authorities in the country of refuge substantially and consciously restricted conditions of

residence with respect to housing, employment opportunities, education, or travel

documentation.64

The Proposed Rules would greatly exacerbate the divergence of U.S. firm resettlement

standards from international law and would radically change the framework. Under the Proposed

Rules, an asylum seeker would be considered “firmly resettled” if (1) she resided with or could

have obtained permanent legal immigration status or indefinitely renewable legal immigration

status in a country through which she transited prior to arriving in or entering the United States;

(2) she resided voluntarily, and without continuing to suffer persecution, in any one country for

one year or more after departing her home country; or (3) she had citizenship in a country other

than the one where she alleged a fear of persecution and was present in that other country prior to

arriving in the United States.65

This unwarranted expansion of the firm resettlement bar unfairly penalizes asylum seekers

whose journey to safety inside the United States can be treacherous and long, and may involve

transit across multiple countries. The Proposed Rules ignore the fact that those with temporary or

renewable status are still in a liminal state, subject to a country’s changing laws and policies.66 In

many countries, refugees or persons granted some other humanitarian status are given one- or two-

year residence permits, with no assurance whatsoever of renewal. Their status can be terminated

at any time, and they do not acquire rights of permanent residence. In no way can they be said to

be “firmly resettled.” With no permanent right to remain, they lack the most basic attribute of firm

resettlement, which, as the Refugee Convention makes clear, is holding rights comparable to those

of nationals.

A “critical component” of the statutory firm resettlement bar is that an asylum seeker “be

genuinely safe” in another country, based on an assessment of her facts.67 As the Ninth Circuit

explained in East Bay Covenant Sanctuary, “[t]he safe-place requirements embedded in the third-

country and firm-resettlement bars ‘ensure that if [the United States] denies a refugee asylum, the

refugee will not be forced to return to a land where he would once again become a victim of harm

or persecution’—an outcome which ‘would totally undermine the humanitarian policy underlying

the regulation.’”68

62 See Refugee Convention, Art. 1(E). 63 See 8 C.F.R. §§ 208.15, 1208.15. 64 Id. 65 85 Fed. Reg. at 36286. 66 See, e.g., Maharaj, 450 F.3d at 969 (en banc); Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 819-20 (9th Cir.

2004) (determining that an offer of temporary residence does not compel a finding of firm resettlement). See also

Masihi v. Holder, 519 F. App’x 963, 963 (9th Cir. 2013) (finding that the applicant’s possession of a renewable visa

and work permit in a third country was insufficient for firm resettlement). 67 East Bay Sanctuary Covenant, 2020 WL 3637585 at *11. 68 Id.

13

Here, as was the case with the transit rule at issue in East Bay Covenant Sanctuary, “[t]he

rule does not even superficially resemble the firm-resettlement bar” and fails to consider whether

the asylum seeker “either truly resettled in a third country, or . . . received an actual offer of firm

resettlement in a country where they have ties and will be provided appropriate status.” Instead,

the Proposed Rules would deny protection to an asylum seeker if she could have resided in any

non-permanent, potentially indefinitely renewable legal immigration status in any country through

which she transited, even if she did not apply for such status. The Proposed Rules would also deny

protection to an asylum seeker if she resided for one year in another country, without regard to her

legal status in that country. As such, the Proposed Rules are not in accordance with law and are in

excess of statutory limitations.

B. Internal Relocation

The Proposed Rules presume, without explanation, that internal relocation is reasonable

when an asylum seeker faces persecution by a non-state actor. Yet, the Agencies offer no evidence

or analysis to support this unfounded contention. Indeed, in many countries, violence at the hands

of non-state actors is widespread, and the state cannot or will not provide protection. Organized

crime groups, for example, have networks and use them to continue to persecute those who

relocate.

Moreover, the Proposed Rules would place the burden on the asylum seeker, regardless of

whether she has established past persecution, to demonstrate by a “preponderance of the evidence”

that internal relocation is not reasonable.69 In doing so, the Proposed Rules impose a burden that

goes well beyond the well-founded fear standard for asylum eligibility established by the Supreme

Court in INS v. Cardoza-Fonseca.70 Under Supreme Court precedent, an asylum seeker may

establish eligibility for protection if she shows a one in ten chance of persecution if returned to her

home country.71 To the extent that the Proposed Rules require an asylum applicant in this scenario

to prove anything more than a well-founded fear, they are ultra vires and violate INS v. Cardoza-

Fonseca and the Refugee Convention.

C. Discretion

The Proposed Rules break with over 30 years of case law regarding the use of discretion

in asylum adjudications. In its 1987 decision in Matter of Pula, the BIA emphasized that “danger

of persecution should outweigh all but the most egregious of adverse factors.”72 Since that time,

federal courts reviewing discretionary denials have required adjudicators to fully consider both

positive and adverse factors in making a determination. Courts have maintained, for example, that

69 85 Fed. Reg. at 36282 (“[T]he Departments propose to amend the regulations to presume that for applications in

which the persecutor is not a government or government-sponsored actor, internal relocation would be reasonable

unless the applicant demonstrates by a preponderance of the evidence that it would not be.”). 70 INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (“That the fear must be ‘well founded’ does not alter the

obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a ‘more likely than not’

one.”) 71 Id. at 440; Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (“[E]ven a ten percent chance of persecution may

establish a well-founded fear.”). 72 Matter of Pula, 19 I. & N. Dec. 467, 474 (B.I.A. 1987). This case was not overturned by Matter of A-B- in 2018.

While Matter of A-B- relied on dicta and did not state the central holding of Pula, it nonetheless confirmed the

Board’s precedent in Matter of Pula, citing it for the governing standard on discretion.

14

the use of false documents and transit through safe third countries do not bar asylum seekers from

relief.73 As one court has noted, “[i]f illegal manner of flight and entry were enough independently

to support a denial of asylum . . . virtually no persecuted refugee would obtain asylum.”74 Indeed,

in a recent decision striking down a joint interim final rule that the DOJ and DHS published without

notice and comment, the Ninth Circuit commented on the Attorney General’s “misunderstanding

of . . . discretion to deny asylum under § 1158(b)(1)(A).”75 In that decision, the Ninth Circuit

clarified the distinction between the “[d]iscretion to deny asylum to eligible aliens” and “discretion

to prescribe criteria for asylum eligibility,” and emphasized that any exercise of discretion must

be consistent with the statute.76

Instead, the Proposed Rules posit a broad list of adverse factors, which encompass nearly

all unlawful entries, nearly all transit through third countries, and even any extended period of

unlawful presence in the United States and any failure to report income, that would likely cover

the vast majority of asylum seekers. And for that vast majority, the Proposed Rules would create

a heavy presumption against granting asylum. The Proposed Rules are thus designed to overturn

the well-established principle that the danger of persecution weighs heavily in favor of a

discretionary grant of asylum, in direct contravention of U.S. protection obligations.77

a. Unlawful Entry and Use of Fraudulent Documents to Enter

The Proposed Rules would make unlawful entry a significant adverse discretionary factor

unless the entry “was made in immediate flight from persecution in a contiguous country.”78 Yet,

any consideration of the manner of entry is generally inconsistent with the Refugee Convention as

well as with the plain language of Immigration and Nationality Act.79 The Proposed Rules

contradict Congress’s clear dictum in 8 U.S.C. §1158(a)(1) that “any alien who is physically

present in the United States or who arrives in the United States (whether or not at a designated

port of arrival…), irrespective of such alien’s status, may apply for asylum.”80 The plain language

of the statute thus demonstrates Congress’ clear intent that a person’s ability to seek refuge in the

United States should not be undermined by her manner of entry. The Proposed Rules contravene

this unambiguous statutory language.

The Proposed Rules would also deem use of fraudulent documents to enter the United

States a significant adverse discretionary factor unless the asylum seeker “arrived in the United

States by air, sea, or land directly from the applicant’s home country without transiting through

any other country.”81 Yet, in our experience representing asylum seekers for decades, people

73 See LAW OF ASYLUM § 6:42. 74 Huang v. I.N.S., 436 F.3d 89, 100 (2d Cir. 2006); Fisenko v. Lynch, 826 F.3d 287, 292 (6th Cir. 2016) (ultimately

denying the petitioner’s application but affirming the holding in Huang that family reunification is a crucial factor in

weighing asylum as a discretionary matter). 75 East Bay Sanctuary Covenant v. Barr, 2020 WL 3637585, at *12. 76 Id. (“Unlike the broad discretion to deny asylum to aliens who are eligible for asylum, the discretion to prescribe

criteria for eligibility is constrained by § 1158(b)(2)(C), which allows the Attorney General to ‘establish additional

limitations and conditions . . . under which an alien shall be ineligible for asylum’ only so long as those limitations

and conditions are ‘consistent with’ § 1158.”). 77 See Refugee Convention, Art. 34 (“[T]he Contracting states shall as far as possible facilitate the assimilation and

naturalization of refugees.”). 78 85 Fed. Reg. at 36301-02. 79 See Refugee Convention, Art. 31 (prohibiting penalizing refugees for irregular manner of entry). 80 8 U.S.C. § 1158(a)(1) (emphasis added). 81 85 Fed. Reg. at 36302.

15

fleeing persecution often do not have documents and sometimes have to acquire documents under

other names or through extra-legal means in order to flee. And, as noted above, adjudicators have

maintained that such use of false documents does not bar asylum seekers from relief, given that

the “danger of persecution should outweigh all but the most egregious of adverse factors.”82

b. Transit

The Proposed Rules mirror the transit rule promulgated on July 16, 2019,83 and broaden its

scope in order to block all asylum seekers, not just those who attempt to enter or arrive at the

southern border. Yet, as noted, the July 16, 2019 transit rule is illegal on substantive and procedural

grounds, and the Ninth Circuit recently struck it down.84 The Proposed Rules, like the July 16

transit rule, do not adequately consider whether asylum seekers have been safely resettled

elsewhere. Accordingly, we ask the Agencies to withdraw these Proposed Rules, based on that

same reasoning.

The Proposed Rules would require a decision-maker to consider whether an asylum seeker

has spent more than 14 days in any one country that permitted applications for refugee status,

asylum, or similar protections before entering or arriving in the United States. They would also

make transit through more than one country a significant adverse factor weighing against an

asylum application. The Proposed Rules acknowledge only three limited exceptions to these

considerations: (1) where an asylum seeker’s application for protection in the relevant third

country has been denied; (2) where an asylum seeker is a victim of a severe form of human

trafficking; or (3) where an asylum seeker was present in or transited through only countries that

were, at the relevant time, not parties to the Refugee Convention, Refugee Protocol, or CAT. These

exceptions are, however, wholly inadequate, and the proposals themselves violate the right to seek

asylum and the principle of non-refoulement, or non-return to persecution or torture, guaranteed

under U.S. and international law.

As the Ninth Circuit recognized, conditions in countries asylum seekers transit through are

often dangerous, making it impossible for asylum seekers to find safe haven there.85 Many face

harm in transit countries, similar to the persecution suffered or feared in their home countries, and

many transit countries do not provide fair, clear, and accessible asylum processes. Denying asylum

seekers the right to seek asylum based on transit through third countries thus places the lives of

asylum seekers at risk. Under the Proposed Rules, asylum seekers would thus be in danger of both

refoulement and “chain refoulement,” or removal to a third country where there is a “readily

ascertainable risk of subsequent refoulement.”86

82 Pula, 19 I. & N. Dec. at 474; LAW OF ASYLUM § 6:42. 83 Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829. 84 See East Bay Sanctuary Covenant, 2020 WL 3637585, at *11, *15 (“The fact that an alien might prefer to seek

asylum in the United States rather than Mexico or Guatemala may be reflective of the relative desirability of asylum

in these countries, but it has no bearing on the validity of the alien’s underlying asylum claim.”). 85 Id. at *16 (criticizing the government for “ignor[ing] extensive evidence in the record documenting the dangerous

conditions in Mexico and Guatemala that would lead aliens with valid asylum claims to pursue those claims in the

United States rather than in those countries”). 86 James C. Hathaway, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 325 (2005).

16

V. The Proposed Rules Penalize Pro Se Asylum Seekers and Violate Due Process.

A. Pretermission of Claims Would Impermissibly and Inevitably Result in the

Refoulement of Bona Fide Refugees.

Among the most harmful aspects of the Proposed Rules are the changes relating to

pretermission of claims. The Rules would allow immigration judges to “pretermit,” or summarily

deny, asylum applications without a hearing or testimony. Immigration judges would be permitted

to make these denials based solely on the Form I-589 application for asylum, withholding of

removal and protection under CAT if they find it legally insufficient in any way. These

pretermission rules would contradict precedent and prevent bona fide asylum seekers from gaining

protection.

To begin, the pretermission rules contravene years of precedent in immigration court. In

Matter of Fefe, the Board explicitly ruled that immigration judges should not “proceed to

adjudicate a written application for asylum if no oral testimony has been offered in support of that

application.”87 The Proposed Rules dismiss this decision completely, noting only that the

regulations at the time of the decision are no longer in effect. But the Board’s insistence on a

hearing was not based only on specific regulations; rather, drawing from prior agency precedent

and the UNHCR Handbook, the Board explained in Fefe that “the full examination of an applicant

[is] an essential aspect of the asylum adjudication process for reasons related to fairness to the

parties and to the integrity of the asylum process itself.”88 Drawing upon this principle, the Board

of Immigration Appeals held in Matter of E-F-H-L- that “an applicant for asylum or for

withholding or deferral of removal is entitled to a hearing on the merits of the applications,

including an opportunity to provide oral testimony and other evidence[.]”89 The regulations

acknowledge that Attorney General Jeff Sessions in 2018 vacated Matter of E-F-H-L- on a

technicality, but offer no explanation as to why the decision was substantively incorrect.90

By mandating pretermission of claims, the Proposed Rules completely ignore the

circumstances under which many asylum seekers first file their applications for protection. For

one, many asylum seekers fill out their Form I-589 while detained and/or without the assistance

of counsel and without a full understanding of the complex legal requirements of asylum. Many

do not speak English and cannot fully convey the details of their past experiences or feared

persecution.91 This is particularly difficult considering the trauma that many asylum seekers have

faced in their home countries and on their journey to the United States.92 It is unreasonable to

expect asylum seekers to precisely explain every legal element of their asylum cases in one

document under these circumstances. Indeed, as the Board recognized in Fefe, “there are cases

where an alien establishes eligibility for asylum by means of his oral testimony when such

87 20 I. & N. Dec. 116, 118 (B.I.A. 1989).

88 Id. (emphasis added).

89 26 I. & N. Dec. 319, 324 (B.I.A. 2014). 90 27 I. & N. Dec. 226 (A.G. 2018). 91 See Sabrineh Ardalan, Access to Justice for Asylum Seekers: Developing an Effective Model of Holistic Asylum

Representation, 48 U. MICH. J. L. REF. 1001, 1004 (2015) (“Along with trauma, language barriers and cross-cultural

differences can affect asylum seekers’ abilities to recount their past experiences, as can a lack of understanding of

the legal framework for asylum claims.”). 92 See id.

17

eligibility would not have been established by the documents alone.”93 In light of these challenges,

the pretermission rules will inevitably lead to asylum seekers with valid claims being denied.

The pretermission rule is also contrary to Board precedent and the INA, which expressly

provide that the testimony of an asylum seeker alone may be sufficient to sustain her burden.94

Pretermitting claims without hearing an asylum seeker’s testimony would also violate the Board’s

long-standing recognition that asylum seekers are to be given the benefit of the doubt.95 The

pretermission rule thus “runs counter to the [government’s] responsibility to ensure that refugee

protection is provided where the circumstances warrant it.”96

Troublingly, despite the above, the Proposed Rules assert that pretermission of asylum

applications without a hearing is “consistent with current practice, applicable law, and due

process.”97 In light of this representation, HIRC and HIP request empirical data in the form of the

total number of asylum, statutory withholding of removal, and/or CAT protection applications

pretermitted in removal proceedings following the vacatur of the Board’s precedential decision in

Matter of E-F-H-L-.98 This data will allow HIRC and HIP to assess the validity of the Agencies’

representation that pretermission is “consistent with current practice.”99

B. The Proposed Rules’ Definition of “Frivolous” is Punitive and Untenable.

Under current law, an asylum seeker who knowingly makes a “frivolous” claim after being

advised of the consequences “shall be permanently ineligible for any benefits.”100 Current

regulations state that an asylum application “is frivolous if any of its material elements is

fabricated.”101 The Proposed Rules, however, seek to dramatically broaden the current definition

of frivolous to include applications that lack “merit” or are “clearly foreclosed by applicable law.”

This proposal is squarely at odds with controlling law and precedent. The Supreme Court

itself has recognized “the complexity of immigration procedures, and the enormity of the interests

at stake.”102 Finding any application “clearly foreclosed by law” to be frivolous could result in vast

numbers of claims being deemed frivolous, and is especially detrimental for survivors of gender-

based violence and gang violence, in light of the Proposed Rules’ unreasoned fiats concerning

such protection claims.

The Proposed Rules further erode asylum seekers’ rights to due process by eliminating the

requirement that an immigration judge provide an additional opportunity to account for

discrepancies in an application before determining the application to be frivolous, as long as the

statutorily required notice is provided.103 The administration asserts, without basis, that there is

“no legal or operational reason to require a second warning” before sanctions apply.104 Yet this

93 20 I. & N. Dec. 116, 118 (B.I.A. 1989) (emphasis added).

94 8 U.S.C. § 1158(b)(1)(B); Matter of S-M-J-, 21 I. & N. Dec. 722, 724 (B.I.A. 1997). 95 21 I. & N. Dec. at 735. 96 Cantarero-Lagos, 924 F.3d at 154 (Dennis, J., concurring).

97 85 Fed. Reg. at 36277 (emphasis added). 98 See Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018). 99 See, e.g., United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“[T]he failure to

disclose to interested persons the . . . data upon which the [Agency] relied was procedurally erroneous. Moreover,

the burden was upon the agency to articulate rationally why the rule should apply to a large and diverse class.”). 100 8 U.S.C. § 1158(d)(5)-(6). 101 8 C.F.R. §§ 208.20; 1208.20. 102 Ardestani v. INS, 502 U.S. 129, 138 (1991). 103 Overruling Matter of Y-L-, 24 I. & N. Dec. 151, 157-58 (B.I.A. 2007). 104 85 Fed. Reg. at 36276.

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truncated procedure would be incredibly damaging, especially for unrepresented applicants who

do not have a strong understanding of asylum law. Allowing an asylum seeker the opportunity to

address any discrepancies is essential given the severe consequences of filing a frivolous

application—consequences that result in one of the harshest bars in immigration law.105

Moreover, under the Proposed Rules, asylum seekers may only be able to avoid a

frivolousness finding if they “wholly disclaim” and withdraw their application with prejudice,

accept a voluntary 30-day departure, withdraw with prejudice all other applications for relief, and

waive any right to appeal, motion to reopen or motion to reconsider. This is a strong-arm provision

that could be used to threaten applicants into agreeing to voluntarily leave the country or else have

their applications deemed frivolous and be permanently banned from seeking relief or protection.

Finally, the Agencies assert that the Proposed Rules’ changes regarding frivolousness

would “minimize abuse of the system—and allow for meritorious claims to be heard more

efficiently.” To understand the Agencies’ basis for this contention, HIRC and HIP request

empirical data in the form of the total number of asylum applications deemed by an immigration

judge to be frivolous between fiscal years 2010 and 2020.106

Conclusion

In sum, we urge the Agencies to rescind the current proposals and instead promote greater

compliance with U.S. obligations under domestic and international law to safeguard the rights of

asylum seekers and provide protection to refugees who seek freedom and safety in the United

States.

We appreciate the opportunity to provide comments on this proposed rule. If you have

questions, please contact us by phone at 617-384-8165 or by email at hirc@law.harvard.edu.

Sincerely,

Harvard Immigration and Refugee Clinical Program

HLS Immigration Project

Harvard Law School

6 Everett Street, Suite 3103 (WCC)

Cambridge, MA 02138

105 LAW OF ASYLUM § 6:46; see Matter of B-Y-, 25 I. & N. Dec. 236, 240 (B.I.A. 2010) (holding that a frivolousness

determination requires separate analysis of explanations for inconsistencies and explicit findings as to materiality

and deliberate fabrication). 106 See, e.g., United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“[T]he failure to

disclose to interested persons the . . . data upon which the [Agency] relied was procedurally erroneous.”).